In an appeal against recovery of possession, the High Court upheld lower courts' findings that the disputed property lay outside the defendants' kanam assignment deed based on side measurements and boundaries, dismissing the appeal as devoid of merits.
Second appeal dismissed and pending interlocutory applications closed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
WEDNESDAY,THE 03RD DAY OF OCTOBER 2018 / 11TH ASWINA, 1940
SA.No. 646 of 1995
[AGAINST THE JUDGMENT AND DECREE DATED 30.07.1994 IN AS 125/1989 OF I ADDL.SUB COURT, KOZHIKODE]
[AGAINST THE JUDGMENT AND DECREE DATED 30.06.1989 IN OS 251/1981 OF ADDL.MUNSIFF COURT-1,KOZHIKODE]
APPELLANTS/DEFENDANTS:
1 THAIKOOTTAM PARAMBIL SUNDARI(DIED) D/O.THAIKOOTTAM PARAMBIL KARAPPAN, PADINHARE KAITHAKKAL, EDAKKAD AMSOM, PUTHIYANGADI DESOM, KOZHIKODE.
2 VELAYUDHAN, (DIED) L.Rs.IMPLEADED AGED 44 YEARS S/O.SUNDARI, .THAIKOOTTAM PARAMBIL, PADINHARE KAITHAKKAL, EDAKKAD AMSOM, PUTHIYANGADI DESOM, KOZHIKODE.
3 KRISHNAN, (DIED) L.Rs.IMPLEADED AGED 33 YEARS S/O.SUNDARI, .THAIKOOTTAM PARAMBIL, PADINHARE KAITHAKKAL, EDAKKAD AMSOM, PUTHIYANGADI DESOM, KOZHIKODE.
4 SIVADASAN, (DIED) L.Rs.IMPLEADED AGED 31 YEARS S/O.SUNDARI, .THAIKOOTTAM PARAMBIL, PADINHARE KAITHAKKAL, EDAKKAD AMSOM, PUTHIYANGADI DESOM, KOZHIKODE.
5 SASI, AGED 28 YEARS S/O.SUNDARI, .THAIKOOTTAM PARAMBIL, PADINHARE KAITHAKKAL, EDAKKAD AMSOM, PUTHIYANGADI DESOM, KOZHIKODE.
SUPPL:
6 VILASINI, AGED 38 YEARS D/O.SUNDARI, .THAIKOOTTAM PARAMBIL, PADINHARE KAITHAKKAL, EDAKKAD AMSOM, PUTHIYANGADI DESOM, KOZHIKODE.
S.A. No. 646 OF 1995 2
7 BHAGYALATHA, AGED 29 YEARS D/O.SUNDARI, .THAIKOOTTAM PARAMBIL, PADINHARE KAITHAKKAL, EDAKKAD AMSOM, PUTHIYANGADI DESOM, KOZHIKODE.
8 PRAKASINI, AGED 25 YEARS D/O.SUNDARI, .THAIKOOTTAM PARAMBIL, PADINHARE KAITHAKKAL, EDAKKAD AMSOM, PUTHIYANGADI DESOM, KOZHIKODE.
LEGAL REPRESENTATIVES OF DECEASED APPELLANT NO.4 ARE IMPLEADED AS ADDITIONAL A9 TO A11 AS PER ORDER DATED 09/06/2009 IN IA NO.964/2009.
9 P.K. REETHA AGED 44 YEARS THAIKOOTTAM PARAMBIL, PADINHARE KAITHAKKAL, EDAKKAD AMSOM, PUTHIYANGADI DESOM, KOZHIKODE DISTRICT.
10 SANIL KUMAR AGED 25 YEARS THAIKOOTTAM PARAMBIL, PADINHARE KAITHAKKAL, EDAKKAD AMSOM, PUTHIYANGADI DESOM, KOZHIKODE DISTRICT.
11 RAGESH AGED 44 YEARS THAIKOOTAM PARAMBIL, PADINHARE KAITHAKKAL, EDAKKAD AMSOM, PUTHIYANGADI DESOM, KOZHIKODE DISTRICT.
----------------------------------------------------- LEGAL REPRESENTATIVES OF DECEASED APPELLANT NO.2 ARE IMPLEADED AS ADDL. A12 TO 16 AS PER ORDER DATED 06/12/2012 IN IA NO.3061/2012.
12 ANJANA AGED 53 YEARS W/O. VELAYUDHAN, THAIKOOTTAM PARAMBIL KARNOPAN, PADINHARE KAITHAKKAL, EDAKKAD AMSOM, PUTHIYANGADI DESOM, KOZHIKODE DISTRICT.
13 SAJITHA ARITHAN PURAYIL, VELLAYIL, KOZHIKODE.
S.A. No. 646 OF 1995 3
14 SANITHA D/O. VELAYUDHAN, VELIVILAYIL, CHERIYA MANGATTU.
15 VINISH AGED 33 YEARS S/O. VELAYUDHAN, THAIKOOTTAM PARAMBIL KARNOPAN, PADINJARE KAITHAKKAL, EDAKKAD AMSOM, PUTHIYANGADI DESOM, KOZHIKODE DISTRICT.
16 VINEETHA
AGED 35 YEARS W/O. PRHALADHAN, AITHAN PURAYIL, MARADU, ARAKKINAR POST, KOZHIKODE-673028
---------------------------------------------------- ADDITIONAL APPELLANTS 17 TO 20 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 3RD APPELLANT VIDE ORDER DATED 24.08.2017 IN C.M. APPLICATION NO. 608/2012, I.A. NO. 1390/2012 AND I.A. NO. 1389/2012 :
18 SHIMI P.K, AGED 27 YEARS, W/O. PREMRAJAN, MUKKATH HOUSE, KOZHIKODE -673021
19 SHIJI P.K. AGED 25 YEARS, D/O. KAMALAKSHI, PADINJARE KAITHKKAL HOUSE, PUTHIYANGADI P.O, KOZHIKODE-673021 20 SHIVJOD P.K., AGED 23 YEARS, S/O. KAMALAKSHI, PADANJARA KAITHKKAL HOUSE, PUTHIYANGADI P.O, KOZHIKODE-673021
BY ADVS : SHRI . SUDHI VASUDEVAN A. (SR.) SHRI. JOSE JONES JOSEPH
================================================================================
RESPONDENTS/PLAINTIFFS :
S.A. No. 646 OF 1995 4
3 KUTTYMON, AGED 51 YEARS, S/O.THEYYAN, EDAKKAD AMSOM, PUTHIYANGADI DESOM, KOZHIKODE. (DIED, LRs. IMPLEADED)
S.A. No. 646 OF 1995 5
14 NISHA (MINOR) 16 YEARS, EDAKKAD AMSOM, PUTHIYANGADI DESOM, KOZHIKODE.
15 SUPRIYA (MINOR) 13 YEARS, EDAKKAD AMSOM, PUTHIYANGADI DESOM, KOZHIKODE. LEGAL REPRESENTATIVES OF THE DECEASED 3RD RESPONDENT ARE IMPLEADED AS ADDITIONAL R16 TO R20 AS PER ORDER DATED 09-09-1997 IN C.M.P. NO. 1257/1997 :
16 DEVAKY W/O. KUTTIMON, THAIKKOOTTAM PARAMBIL, PUTHIYANGADI P.O., KOZHIKODE.
17 PUSHKARAN S/O. KUTTIMON, THAIKKOOTTAM PARAMBIL, PUTHIYANGADI P.O., KOZHIKODE.
18 SUNIL S/O. KUTTIMON, THAIKKOOTTAM PARAMBIL, PUTHIYANGADI P.O., KOZHIKODE.
19 SINDHU D/O. KUTTIMON, THAIKKOOTTAM PARAMBIL, PUTHIYANGADI P.O., KOZHIKODE.
20 BINDU D/O. KUTTIMON, THAIKKOOTTAM PARAMBIL, PUTHIYANGADI P.O., KOZHIKODE. ------------------------------------------------ THE LEGAL HEIRS OF THE DECEASED 1ST RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS R21 TO R30 AS PER ORDER DATED 29.01.2002 IN C.M.P. NO. 1341/2001. 21 MALU W/O. T.P. KUMARAN, PADINJARE KAITHAKKAL HOUSE, PUTHIYANGADI P.O.. KOZHIKODE. [DIED. MEMO DATED 22.06.2017 RECORDED AND RESPONDENTS 23 TO 25 ARE RECORDED AS LEGAL HEIRS OF DECEASED 21ST RESPONDENT VIDE ORDER DATED 24-08-2017.]
S.A. No. 646 OF 1995 6
22 T.P. PAVITHRAN (DIED, LRs.IMPLEADED) S/O. T.P. KUMARAN, DO. DO. DO. 23 T.P. SURESH BABU S/O. T.P. KUMARAN, DO. DO. DO. 24 T.P. PUSHPANGADAN S/O. T.P. KUMARAN, DO. DO.. 25 T.P. RAJEEVAN S/O. T.P. KUMARAN, DO. DO. 26 T.P. PUSHPALATHA W/O. GANGADHARAN, DO. DO. 27 T.P. PADMAVATHY W/O. NARAYANAN, SAKATHUVEEDUPARAMBU, NEAR POOZHIYIL ROAD, WEST HILL P.O., KOZHIKODE - 5. 28 T.P. PRASANNA D/O. T.P. KUMARAN, PADINJARE KAITHAKKAL HOUSE, PUTHIYANGADI P.O., KOZHIKODE - 21. 29 K. BHAGHYALATHA W/O. SIVADASAN, KALLUVECHAPURAYIL HOUSE, KAMPURAM, WEST HILL P.O., KOZHIKODE - 5. 30 V. RAJESWARI W/O. GANGADHARAN, VELIYAPURAYAIL, MUKAVANKANDI, PUTHIYOTTUM KANDI HOUSE, PUTHIYANGADI P.O., KOZHIKODE - 21. ----------------------------------------------------- LEGAL REPRESENTATIVES OF THE DECEASED R22 ARE IMPLEADED AS ADDITIONAL RESPONDENTS 31 TO 33 AS PER ORDER DATED 24-08-2017 IN I.A. NO. 1407/2012 AND I.A. NO. 1408/2017 :
S.A. No. 646 OF 1995 7
31 P.K. RAGINI, AGED 47 YEARS, W/O. LATE SRI. PAVITHRAN PADINCHARE KAITHAKKAL, P.O. PUTHIYANGADI,KOZHIKODE-21
LEGAL REPRESENTATIVES OF THE DECEASED 2ND RESPONDENT ARE IMPLEADED AS THE ADDITIONAL RESPONDENTS 34 TO 38 AS PER ORDER DATED 24-08-2017 IN I.A. NO. 1335 OF 2014.
34 YASHODA, W/O. LATE BALAKRISHNAN, THAIKOOTAMPARAMBIL HOUSE, PADINJARE VATTAKANDI, PUTHIYANGADI AMSOM DESOM, PUTHIYANGADI POST, KOZHIKODE -673021.
35 GEETHA, D/O. LATE BALAKRISHNAN, THAIKOOTAMPARAMBIL HOUSE, PADINJARE VATTAKANDI, PUTHIYANGADI AMSOM DESOM, PUTHIYANGADI POST, KOZHIKODE -673021
37 PRAJOSH, S/O. LATE BALAKRISHNAN, THAIKOOTAMPARAMBIL HOUSE, PADINJARE VATTAKANDI, PUTHIYANGADI AMSOM DESOM, PUTHIYANGADI POST, KOZHIKODE -673021
38 JYOTHSNA, D/O. LATE BALAKRISHNAN, THAIKOOTAMPARAMBIL HOUSE, PADINJARE VATTAKANDI, PUTHIYANGADI AMSOM DESOM, PUTHIYANGADI POST, KOZHIKODE-673021
FOR R1 TO R30 BY ADVS. SHRI. M.C.SEN,
SHRI. M.P. SREEKRISHNAN, SMT. SHABNA KARTHIKEYAN
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
J U D G M E N T
The defendants in the suit are the appellants. The suit
was initially one for injunction. Later, the same was converted as
S.A. No. 646 OF 1995 8
one for recovery of possession as well. The case set out by the plaintiffs in the plaint is that they obtained the plaint A schedule property in terms of Ext.A1 gift deed and that the defendants, who are in possession of the plaint B schedule property, which is a portion of the plaint A schedule property, on the strength of Ext.A2 kanam assignment deed, have trespassed upon the plaint C schedule property which is another portion of the plaint A schedule property. It is specifically alleged by the plaintiffs in the plaint that the defendants have trespassed into the plaint C schedule property on 21.06.1981. The defendants contested the suit contending that the plaint C schedule property is a portion of the property covered by Ext.A2 kanam assignment deed; that they have obtained purchase certificate from the Land Tribunal in respect of the property covered by Ext.A2 kanam assignment deed under the Kerala Land Reforms Act and that they are holding possession of the plaint B and C schedule properties on that basis. As such, according to the defendants, the plaintiffs are not entitled to the decree for recovery of possession as sought by them.
S.A. No. 646 OF 1995 9
aside by the trial court. Ext.C5 and Ext.C6 are the plan and report submitted by the Advocate Commissioner thereafter.
the side measurements and the boundaries of the property shown in Ext.A2 kanam assignment deed, the trial court found that the plaint C schedule property is not part of the plaint B schedule property covered by Ext.A2 kanam assignment deed. Consequently, the trial court granted the plaintiffs the decree for recovery of possession of the plaint C schedule property sought by them. Though the defendants challenged the decision of the trial court in appeal, the appellate court, on a reappraisal of the materials on record, confirmed the decision of the trial court. The defendants are aggrieved by the said decisions of the courts below.
S.A. No. 646 OF 1995 10
assignment deed with effect from the date of the said document. It was pointed out by the learned Senior Counsel that the side measurements of the property shown in Ext.A2 kanam assignment deed are incorrect. It was also contended by the learned Senior Counsel that in so far as the specific case pleaded by the plaintiffs in the plaint that the defendants have trespassed into the plaint C schedule property on 21.06.1981, the plaintiffs, at any rate, are not entitled to the decree for recovery of possession sought in the suit.
S.A. No. 646 OF 1995 11
parties as to the lie of the Plaint B schedule property. The said property is a portion of the plaint A schedule property lying adjoining to its southern boundary. Likewise, there is also no dispute between the parties as to the lie of the plaint C schedule property. The plaint C schedule property has been identified by the Advocate Commissioner on the eastern side of the plaint B schedule property adjoining to the southern boundary of the plaint A schedule property on its south-eastern corner. The defendants do not dispute the identification of the plaint C schedule property made by the Advocate Commissioner. There is also no dispute as to the fact that the name of the plaint A schedule property is 'Padinjare Kaithakkal Parambu'. Ext.A2 indicates that the plaint B schedule property is surrounded by 'Padinjare Kaithakkal Parambu' on its west, north and south. If the plaint C schedule property as identified by the Advocate Commissioner and shown in Ext.C5 plan was part of the property covered by Ext.A2 kanam assignment deed, the eastern boundary of the plaint B schedule property would not have been shown in the document as 'Padinjare Kaithakkal Parambu'. Further, the side measurement of the property covered by Ext.A2 kanam assignment deed is shown in the document as 15 'kole' in the east-west direction and 15.6 'koles' in the north-south
S.A. No. 646 OF 1995 12
direction. If the side measurements of the property covered by Ext.A2 kanam assignment deed as shown in the document are correct, there cannot be any dispute to the fact that the plaint C schedule property would not be part of the property covered by the said document. It is on account of the aforesaid reason that the learned Senior Counsel contended that the side measurements are mistakenly shown in the document. It is seen that in Ext.B4 application preferred by the defendants before the Land Tribunal under Section 72B of the Kerala Land Reforms Act for purchase certificate in respect of the property covered by Ext.A2 kanam assignment deed, the property has been described by them as described in the document with the very same side measurements and they have obtained purchase certificate in the said proceedings only for the said property. In the light of Ext.B4 application, the defendants cannot be heard to contend that the side measurements of the property shown in Ext.A2 kanam assignment deed are incorrect. It is in the aforesaid background that the courts below have come to the conclusion that the plaint C schedule property is not covered by Ext.A2 kanam assignment deed. I do not find any infirmity in the said findings of the courts below.
S.A. No. 646 OF 1995 13
defendants were in possession of the plaint C schedule property even before 21.06.1981. Insofar as the defendants admitted the title of the plaintiffs over the plaint C schedule property and insofar as they have not set up a plea of adverse possession in respect of the same, even if the case of the defendants that they were in possession of the plaint C schedule property before 21/06/1981 is accepted, the same does not affect the right of the plaintiffs to claim a decree for recovery of possession of the said property. There is, therefore, no substance in the above contention of the defendants as well.
The second appeal, in the circumstances, is devoid of merits and the same is, accordingly, dismissed. All pending interlocutory applications in the second appeal are closed.
Sd/-
P.B.SURESH KUMAR, JUDGE
PKK
3 issues framed by the court
Whether the plaint C schedule property is covered by the Ext.A2 kanam assignment deed held by the defendants.
Whether the side measurements in the kanam assignment deed exclude the plaint C schedule property from defendants' title.
Whether prior possession by defendants before 21.06.1981 affects plaintiffs' right to recovery of possession.
Thaikoottam Parambil Sundari Ors.
Thaikoottam Parambil Kumaran Ors.
P.B. Suresh Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
